AS TO THE ADMISSIBILITY OF
Application no. 50213/99
by Karol TÁM
The European Court of Human Rights (Fourth Section), sitting on 1 July 2003 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs V. Strážnická,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 17 May 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Karol Tám, is a Slovakian national, who was born in 1943 and lives in Bratislava. The respondent Government were represented by Mr P. Vršanský, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 August 1993 the applicant consulted a doctor to whom he complained of health problems due to the fact that his neighbour had tried to poison him. The doctor sent the applicant to the hospital in Ružinov in an ambulance. The accompanying document established by the doctor indicated that the applicant suffered from paranoid schizophrenia. In it the doctor requested that the applicant be treated as an in-patient. According to the applicant, he stayed in the central reception unit of the hospital in Ružinov for about ten minutes and during this time two injections were administered to him. Subsequently the applicant was brought against his will to the mental hospital in Pezinok. The chief physician of that hospital ordered that the applicant be released on 26 August 1993.
On 19 August 1993 the Bratislava - vidiek District Court delivered a decision in which it found, without reference to any particular facts, that the applicant’s examination in the hospital was lawful as the applicant suffered from mental illness. The decision indicated that in the proceedings the applicant was represented by a guardian. It was served on the applicant on 20 September 1996. On 1 October 1996 the applicant appealed and claimed that he had been taken to the mental hospital unlawfully.
On 30 April 1998 the Bratislava Regional Court quashed the District Court’s decision of 19 August 1993. The Regional Court found that the first instance court had failed to establish the relevant facts and had committed errors of both a legal and procedural nature. In particular, the District Court did not deliver formal decisions to bring proceedings concerning the lawfulness of the applicant’s examination in a mental hospital and to appoint a guardian to the applicant as required by Article 191b §§ 1 and 2 of the Code of Civil Procedure. Furthermore, the District Court did not hear the applicant and the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified. The case was sent back to the District Court for a new adjudication.
In a letter dated 21 January 1999 a judge of the Bratislava III District Court (which had taken over the cases pending before the former Bratislava - vidiek District Court) informed the applicant that the case would not be proceeded with as proceedings concerning the lawfulness of his placement in a mental hospital had never been formally brought.
On 26 February 1999 the Bratislava Regional Court instructed the District Court to deliver a decision on the case.
On 6 July 1999 the Bratislava III District Court discontinued the proceedings. The decision stated that the applicant had been released on 26 August 1993 and, therefore, the reasons for proceeding further with the case had fallen away. The applicant appealed on 9 August 1999. He claimed that his deprivation of liberty had been unlawful and that he had not been informed that a guardian had been appointed to represent him.
On 31 May 2000 the Bratislava Regional Court upheld the District Court’s decision of 6 July 1999.
The applicant also unsuccessfully tried to have criminal proceedings brought against the doctor who had originally decided that he be taken to a hospital as suffering from a mental disease. In a decision which was delivered in this context on 6 May 1996 the Bratislava - vidiek District Prosecutor noted, with reference to the police file concerning the applicant’s criminal complaint, that the applicant had been taken to the hospital in Pezinok upon the recommendation of the psychiatrists of the Ružinov Hospital in Bratislava.
B. Relevant domestic law and practice
1. The Constitution
At the relevant time the following constitutional provisions were in force.
Pursuant to Article 11, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms.
Article 144(1) provides that judges are independent and bound only by law.
Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide.
2. The Code of Civil Procedure
Article 191a (1) provides that medical institutions shall inform a court, within twenty-four hours, that a person has been placed in their premises against his or her will.
Pursuant to Article 191b (1), the court in the district of which the medical institution is located shall start proceedings, of its own initiative, with a view to establishing whether such a person’s deprivation of liberty was justified.
Paragraph 2 of Article 191b provides that the court shall appoint a guardian to the person concerned unless he or she has a representative.
Under paragraph 3 of Article 191b, the court shall hear the person concerned as well as the doctor treating him or her with a view to establishing whether the placement in the medical institution was lawful.
Paragraph 4 of Article 191b requires that the court decide, within seven days after a person was brought to a medical institution against his or her will, whether such a measure was lawful.
Pursuant to Article 191c (1), such a decision is to be served, inter alia, on the person concerned unless the doctor indicates that that person is not able to understand its contents.
3. The Civil Code
According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
Pursuant to Article 13 (1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
Article 13 (2) provides that in cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.
4. The State Liability Act of 1969
Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.
Section 18 (1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.
5. Regulation No. 32/1965
Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.
Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner.
6. Practice under the State Liability Act of 1969
Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration of a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001, unreported).
The applicant complained that his deprivation of liberty had been unlawful and that the courts had failed to determine this issue. He alleged a violation of Article 5 §§ 1 and 4 of the Convention.
The applicant complained that his deprivation of liberty had been unlawful and that the courts had failed to determine this issue. He relied on Article 5 §§ 1 and 4 of the Convention the relevant parts of which provide:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government maintained that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that it was open to the applicant to obtain redress as regards the alleged violation of his Convention rights by means of (i) an action for compensation under the State Liability Act of 1969 and (ii) an action for protection of his personality rights under Article 11 et seq. of the Civil Code. As regards the possibility of claiming damages under the State Liability Act, the Government maintained, in particular, that the applicant could have requested that Article 5 § 5 of the Convention be applied by the domestic courts with reference to Articles 11 and 144(2) of the Constitution and claim compensation also for non-pecuniary damage.
The applicant disagreed.
The Court notes that, in accordance with the domestic practice, a claimant in proceedings under the State Liability Act of 1969 is required to show that he or she suffered damage as a result of an erroneous action of a public authority, quantify its amount, and show that there is a causal link between the damage and the erroneous action in question. The information available indicates that compensation for damage of non-pecuniary nature is excluded with the exception of cases where damage to a person’s health was caused. In these circumstances, the Court is not satisfied that this remedy was capable of providing sufficient redress in respect of the breaches of the Convention rights alleged by the applicant.
As to the Government’s argument that the applicant could have requested, with reference to Articles 11 and 144(2) of the Constitution, that the domestic courts apply Article 5 § 5 of the Convention and compensate him also for damage of non-pecuniary nature, the Court notes that in the present case the applicant does not allege a violation of Article 5 § 5 of the Convention. Furthermore, the subject-matter of proceedings under the State Liability Act of 1969 is compensation for damage caused by an erroneous official action or, as the case may be, unlawful decision which was quashed by the competent authority. There is no indication that in such proceedings the domestic courts are likely to entertain complaints about breaches of substantive provisions of the Convention. In any event, the Court is not satisfied that the possibility of obtaining appropriate redress in respect of the alleged breaches of the Convention by means invoked by the Government was sufficiently certain in practice and offered reasonable prospect of success as required by the relevant case-law (see Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, pp. 16-17, § 29, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1211, §§ 66-68).
In the Court’s view, neither did an action under Article 11 et seq. of the Civil Code for protection of the applicant’s personality rights constitute a remedy capable of directly redressing the impugned state of affairs as required by the Court’s case-law. Accordingly, the Government’s objection must be dismissed.
As regards the merits, the Government admitted that the applicant’s complaints were not manifestly ill-founded.
The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
TÁM v. SLOVAKIA DECISION
TÁM v. SLOVAKIA DECISION